Where the Mind Is... Full of Fear

Our legal framework ensures that the balance of power in the relationship between the State and the citizen favours the State

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Harsh Bora

November 8, 2019

ISSUE DATE: November 18, 2019

UPDATED: November 8, 2019 12:47 IST

Illustration by NILANJAN DAS

As conversations on everyday issues shift online, people are increasingly sharing their views and opinions on social media. This has also given rise to an unfortunate culture of trolling and spamming. But a far more sinister trend is the increase in the number of criminal cases against ordinary people for their online posts.

A one-week span in June 2019 saw the arrest of eight people, including journalists, in four states, for their posts-some satirical, others serious- against political leaders. Whether it is to disagree with someone, or critique government policy, or satirise a stuffy politician, or express an unpopular opinion, our Constitution protects every person's right to hold and express views. Article 19(1)(a) guarantees the freedom of speech and expression, with some clearly defined exceptions-in the interest of sovereignty and integrity of India, State security, public order, decency, morality, contempt of court, defamation and incitement to a crime.

The criminal justice system, which derives its existence from the Constitution, is supposed to mirror the constitutional guiding principles of 'Liberty, Justice, Equality', and ensure that free speech and expression are protected. Yet, the framework of criminal laws enacted by the Legislature, and the two principal institutions of the criminal justice system-the police and the courts-struggle to fulfil this promise.

India's criminal law machinery, with its colonial roots, lends itself to misuse by both state and non-state actors, sometimes obliquely but often unabashedly, to counter criticism or opposing ideologies or political challenges-and even to gag whistle-blowers. When independent India adopted a new Constitution in 1950, the newly minted Republic did not manage to jettison the many laws originally designed to suppress freedom of speech and expression of colonial subjects. So, even while it guaranteed Indian citizens freedom of speech and expression, the Constitution did not restrict the remit of the State's powers to clamp down on its own citizens when it so wished.

After 70 years of attempted reforms and many constitutional amendments, we have still not managed to align the constitutional guarantees to the citizen with the powers available to the State, or to firmly implant constitutional values in the practice of the police and the courts. We still have repressive laws that criminalise speech and grant the police sweeping powers without adequate accountability. Judicial oversight of police actions is poor, and all this has contributed to a chilling atmosphere where to hold and express an unpopular opinion, even one legally acceptable, is to make oneself vulnerable to legal action. It is important to understand how something legal can be rendered illegal.

The sweeping powers given to the police without enough accountability or judicial oversight is a key infirmity in our legal system

Illustration by NILANJAN DAS

The Indian Penal Code (IPC), which provides the basic scaffolding of our criminal law, came into force in 1862. Independent India inherited this framework and has, by and large, preserved the powers of the State granted by the original Code. A big reason free speech and political action otherwise legal under the Constitution become assailable is the vague definition of so-called 'offences'.

The interpretive elasticity of 'security of state', 'public order', 'law and order' and other such catch-all terms the State and police whimsically invoke makes them prone to misuse. What threatens 'public order', for example, is endlessly stretchable, which makes its application potentially arbitrary.

The relevance and need for many such laws-those on sedition (IPC, Sec. 124A) and criminal defamation (IPC, Sec. 499/500) being prominent examples-have repeatedly been questioned, but to no avail. Misuse of the sedition law (Sec. 124A) has become commonplace, despite multiple Supreme Court interpretations setting down the legal scope of the words 'bringing hatred, contempt or disaffection towards the Government established by law in India'. These interpretations have sought to clarify the letter of the law, by insisting that to invite the charge of sedition, an 'offence' must also meet the standard of 'incitement to violence'.

The police, however, tend to invoke Sec. 124A willy-nilly. While there is obvious police ignorance of established law, the ridiculous application of this offence shows that it is being used to harass and silence people, not to actually take them to trial. And most trials, when they do take place, end in acquittals.

Data recently released by the National Crime Records Bureau (NCRB) shows that acquittal rates for sedition stood at over 80 per cent for 2017. Two prominent sedition cases registered in recent months met neither the standards of definition nor interpretation- one against Shehla Rashid in Delhi for a Twitter post criticising the army and another against 49 intellectuals who had sent an open letter to the prime minister expressing their concern over the growing incidence of mob violence. Across India, numerous other such sedition cases have been registered in the past few years.

In Manipur, two FIRs were filed in the past year-for criticising the Citizenship Amendment Bill and for criticising BJP ministers. In 2016, 12 delegates at the International Film Festival of Kerala were arrested because they didn't stand up for the national anthem. People have also been arrested for singing songs, drawing cartoons and protesting a nuclear power plant. The NCRB data shows a national-level spike of 46 per cent in sedition cases in 2017 over the previous year, and judging by media reports and unofficial estimates, it has only got worse since.

Criminal defamation cases have also seen a noticeable upswing in recent times, with people themselves accused of illegal/ improper behaviour dragging their accusers to court in a bid to secure public and legal exoneration. The preventive detentions in Kashmir before and, more importantly, since the abrogation of Article 370 on August 5, are another prime example of how the law was used to keep public outrage from spilling onto the streets; in this instance, social outrage, political challenge and economic uncertainty were dressed up as law and order problems.

Most recently in this continuing saga of gagging political dissent-unconstitutionally, one may add-the detainees were asked to sign, as a condition for their release, a bond that required them to voluntarily surrender their right (under Article 19) to free speech and peaceful assembly.

The gamut of powers given to the police-to detain, arrest, search, seize, charge and prosecute- sans a robust system of accountability is a key infirmity in our legal system. The abuse of police powers, at the behest of the State, and the validation of repressive action by laws that make light of civil liberties and citizen rights make the balance the power between the citizen and the State an extremely lopsided one.

Anti-terror laws are a classic example of this, as seen in their application in the Bhima-Koregaon case, where vocal critics of the government have been charged under the Unlawful Activities (Prevention) Act or UAPA-India's principal anti-terror legislation. Abuse or arbitrary use of police power can turn malevolent under laws like the UAPA, where police allegations are taken to be the gospel truth, and the accused become cannon fodder, so to speak-rotting in jail for years before their plea of innocence is upheld.

Recent amendments to the UAPA gave the National Investigating Agency (NIA), under the home ministry, unrestricted powers to seize property across India. Another amendment gave the central government the capriciously exercisable power to designate individuals as 'terrorists'-another dangerous weapon, easily misused to stifle dissent by labelling, stigmatising and delegitimising critics.

The scope for police repression is exacerbated by a judiciary that often fails in its duty to hold the police to account. The lower judiciary, especially magistrates, have direct oversight of police actions, but not only do they frequently fail to check baseless arrests or police misdemeanour, they often mindlessly endorse bad police action.

(Exceptions to this norm do exist, but those are few and far between.) Randomly applied parameters like 'inflammatory comment' or 'maintenance of public order' become grounds for magistrates to remand people to custody or deny them bail, which enables and further encourages police impunity.

This is even after higher courts have critically questioned arrests and remand orders passed by magistrates. Last year, in the same Bhima-Koregaon case, a magistrate in Delhi gave remand of civil liberties activist Gautam Navlakha to the Pune police on the basis of documents in Marathi, which the judge could not read or understand. Similarly, in the June 2019 case of journalist Prashant Kanojia, the Supreme Court noted his arrest (and subsequent remand) was only for his opinions, not for any crime.

The higher judiciary, especially the high courts, are effectively the last judicial recourse against police action, as most people lack the means to approach the Supreme Court. But even these courts are sometimes found yielding easily to the supposed interests of 'national/internal security'. In the recent Supreme Court hearings against the communications blackout in J&K, the court crafted constitutionally unrecognised parameters- like 'national interest' and 'internal security'-to justify the restrictions on the fundamental rights of citizens.

While political activists have always borne the brunt of these excesses, the impatience with dissent is growing and now extending to ordinary people. The fear of arbitrary, repressive police action can silence all but the most obdurate critic of the ruling establishment. To effectively safeguard free speech, then, we need to find ways to make the police accountable, remove political interference in policing, have more effective oversight of police action and demand that our police and judiciary become more responsive to free-speech violations.

Only then can we ensure that the criminal justice system does not become a way of silencing critics.

Harsh Bora is a criminal lawyer practising in the trial courts of Delhi and the Delhi High Court